Everything you say can be used against you, including what you share on social media. That clever comment you made, the vacation photo dump, or the rant you just needed to get off your chest can all have the potential to come back to haunt you. The first rule of using social media should be realizing that nothing is private. No matter how locked down you think your social media accounts are, they can be found, and your contributions can become front and center in any legal matter you may find yourself in.
Whether it's business or personal social media, there are two key reminders you should remember:
1. Privacy does not exist in social media.
2. If you can’t defend it in a legal setting, don’t put it on social media, messages, reviews, or responses to reviews.
Here are some areas where social silence is golden:
Keep Perceptions in Check
Your social media posts, comments, and photos (even if they are set to private) can be obtained, and the opposing side can use these to paint you as the opposite of how you may need to be portrayed. For example, if your business has run into financial troubles and is struggling to pay a vendor who is now suing you for the debt, it would not be a good idea to photo-dump your vacation to Italy, large purchases, or the party you threw for your friend circle.
Here’s another scenario: You are facing litigation because a client sued you for not delivering the promised services or goods, yet you feel you fulfilled the contract. Your legal team is praying you do not have any posts, reels, stories, TikTok, or messaging where you disparage or complain about clients, joke about working a "flex schedule", celebrate your freedom to take the day off, or post yourself throughout the work week basking in YOU time. Social media is 1000% perception, and even if you completed the job perfectly, make sure the perception you are putting out there matches the expectation of your clients.
The Thumper Rule
Disney’s Thumper gave some excellent advice: “If you can’t say something nice, don’t say nothing at all.” In the wild west of social media, this advice is almost unheard of as users falsely believe that what they say won’t matter, find them, or affect them. Your social media interactions can be used as a source of information or evidence to support the opposing side’s claims. Your character and the reputation of your business can be destroyed by a few flippant comments or rants you couldn’t resist posting and maybe even forgot about. Character evidence is powerful in the law; you should ensure that yours is as clean as possible.
What’s Funny Now May Not Be Funny Then
Engagement is number one with social media. Achieving clicks, shares, and likes can tempt one into joking about things that could be inappropriate or even illegal -- the shock factor! It’s best to never joke about illegal activity or about someone else or their business. And, no matter how upsetting a situation can be, snappy name-calling, veiled threats, or any association with violence should be avoided at all costs in social media, messages, reviews, or responses to reviews. These things will be much less amusing in court.
It's Better to Be Alone Than in Bad Company
So, you’ve resisted commenting even when something made you mad, kept personal opinions out of posts, comments, and messages, and carefully watched the photos you’ve posted --- is there anything else that can hurt you on social media? Yes, and it’s a big one. Be vigilant about who you are friends with, connect with, message, and appear with – this applies to personal accounts and business accounts. You are the company you keep -- true IRL and true in social media life.
In summary, while social media is fun and a massively useful tool for business, it can also be legally lethal if not used with intelligence and common sense. Think about your posting and give yourself permission to remain silent sometimes.
Dye Culik PC is a business and franchise law firm located in Charlotte, NC. Speaking of social media, follow us on Facebook, Instagram and YouTube at @dyeculik. As always, we welcome questions about any of our topics and are here if you need us for your business. Connect with us to set up a consultation.